Freeman v The Queen - [2016] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND

CA50/2016
[2016] NZCA 85

BETWEEN	APRIL LORRAINE FREEMAN Appellant
AND	THE QUEEN Respondent

Counsel:

W C Pyke for Appellant
A J Ewing for Respondent

Judgment:

(On the papers)

23 March 2016 at 4 pm

JUDGMENT OF COOPER J ON
APPLICATION FOR BAIL PENDING APPEAL

The application for bail pending appeal is declined.

____________________________________________________________________

REASONS

The appellant seeks bail pending determination of her appeal against conviction and sentence. I have considered the application pursuant to s 333(2)(d) of the Criminal Procedure Act 2011.
On 7 December 2015, following a trial at the Manukau District Court, the appellant was convicted on two representative counts of theft (over $1,000). On 21 January 2016, she was sentenced to 15 months’ imprisonment.[1]
[1]R v Freeman [2016] NZDC 730.
Bail pending sentence had been declined by the trial Judge, Judge Andrée Wiltens.[2] However, the High Court allowed an appeal against that decision.[3]
[2]R v Freeman [2015] NZDC 24354.
[3]Freeman v R [2015] NZHC 3234.
In advancing the application for bail Mr Pyke notes that the conviction appeal will be focused on complaints about trial counsel, and may involve calling further evidence as well as complaints about decisions and directions made by the trial Judge. Mr Pyke has also referred to issues about the reliability of the complainant: these were explored at trial but are to be pursued in the fresh evidence application. Mr Pyke points to the risk that the sentence appeal will become otiose due to the complexities of the conviction appeal and the time that will necessarily lapse before it can be readied for hearing. Counsel are agreed that the sentence release date will be 24 August 2016.
The test to be applied in relation to the application is that set out in s 14 of the Bail Act 2000. Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the appellant to show cause why bail should not be granted. Section 14(3) then lists as specific considerations relevant to the interests of justice the apparent strength of the grounds of appeal, the length of the sentence imposed, the likely length of time that will pass before the appeal is heard, and the personal circumstances of the appellant and her immediate family. There is a residual category of “other matters” the Court considers relevant. However, as was said in Ellis v R[4] and affirmed in Iti v R[5]:
Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.
[4]Ellis…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Freeman v The Queen

Details

AGLC: Freeman v The Queen [2016] NZCA 85
Case: [2016] NZCA 85
Decision Date: 23 March 2016 at 4 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, April Lorraine Freeman, has appealed against her conviction and sentence. Freeman was convicted on two counts of theft, with each count involving an amount over $1,000. The sentencing resulted in a 15-month imprisonment term. Freeman's counsel, Mr. Pyke, has applied for bail pending the determination of the appeal, citing the potential complexity of the appeal process and the possibility that the sentence appeal may become irrelevant due to delays. The High Court had previously allowed an appeal against the denial of bail pending sentence. The legal issue at hand is whether bail should be granted pending the appeal, considering the balance of probabilities and the interests of justice.

The court considered the application under section 333(2)(d) of the Criminal Procedure Act 2011, and the relevant test under section 14 of the Bail Act 2000. The court noted that bail pending appeal is unusual and is granted only in exceptional circumstances, with the primary consideration being the overall interests of justice. The court emphasised that the appellant had been found guilty and sentenced, and the onus was on the appellant to demonstrate why bail should not be granted. The court considered several factors, including the apparent strength of the grounds of appeal, the length of the sentence imposed, the likely length of time before the appeal is heard, and the personal circumstances of the appellant and her immediate family. The court was not persuaded that the prospects of success on the sentence appeal were such that they favoured a grant of bail pending the appeal.

The court declined the application for bail pending the appeal. The reasoning was based on the appellant's record of previous similar convictions, the nature of the current offending, and the adequacy of treatment available in prison to address the appellant's health issues. The court found that the appellant had not sufficiently demonstrated that the prospects of success on the sentence appeal favoured a grant of bail pending the appeal. The court noted that the appellant's obligations with respect to her young child were considered in the sentencing exercise and did not constitute a compelling reason to grant bail. The court concluded that the application for bail pending appeal was declined.

Orders